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legal-research-methods
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- Activity 3.1: Classify the following published Research products into Doctrinal, Non-Doctrinal, and both types of legal researches, by reading the papers
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- 4.1.1 Evolutive and evaluative
- 4.1.2 Identificatory and impact studies
- 4.1.3 Projective and predictive
3.3.3.2 Limitations Though socio-legal research has great potentials, yet a few limitations 88 thereof need to mention here to put its role in the right perspective. A few significant are outlined below. First, non-doctrinal legal research is extremely time consuming and costly as it requires a lot of time for collecting the required information from field. Further, it calls for additional training in designing and employing tools of data collection and entails greater commitments of time and energy to produce meaningful results, either for policy-makers or theory-builders. 89 Secondly, socio- legal research, as explained earlier, needs a strong base of doctrinal legal research. A legal scholar who is weak in doctrinal legal research cannot handle non-doctrinal legal research in a meaningful way. It may turn out to be a futile exercise leading to no significant results. 88 See, S N Ja in, Doctrina l and Non-Doctrinal Legal Research, supra n 16. 89 International Lega l Center fo r La w in Develop ment (Research Advisory Committee on La w and Develop ment), Report on Law and Development 10 (Ne w York, 1974). chilot.wordpress.com 95 Thirdly, the basic tools of data collection, namely interview, questionnaire, schedule and observation, are not simple to employ. They require specialized knowledge and skill from the stage of planning to execution. Each one of them is bridled with a number of difficulties. 90 A researcher has to have a sound skill-oriented training in social science research techniques. A cumulative effect of this limitation of non- doctrinal legal research and of the one mentioned in secondly is that a well-trained social scientist cannot undertake socio- legal research without having a strong base in doctrinal legal research. Similarly, a scholar of law, though having a strong base in legal principles, concepts or doctrines as well as in doctrinal legal research, cannot venture into non-doctrinal legal research unless he has adequate training in social science research techniques. In either case, non-doctrinal legal research becomes a mere nightmare for both of them. A wa y out, therefore, seems to be an inter- disciplinary approach in investigating legal problems. However, inter-disciplinary legal research has its own difficulties and limitations. 91 Fourthly, invariably public opinion, as mentioned earlier, influences conte nts and framework of law. Law, most of the times, also seeks to mould and/or change the public opinion, social value and attitude. In such a situation, sometimes it becomes difficult for a non-doctrinal legal researcher to, on the basis of sociological data, predict with certainty the ‘course’ or ‘direction’ the law needs to take or follow. Such a prediction involves the maturity of judgment, intuition, and experience of the researcher. He may fall back to doctrinal legal research. Nevertheless, sociologica l research may be of some informal value to the decision- makers. Fifthly, sometimes, because of complicated social, political and economic settings and varied multiple factors a socio- legal researcher may again be thrown back to his own ideas, prejudices and feelings in furnishing solutions to certain problems. Sixthly, Socio-legal research becomes inadequate and inapt where the problems are to be solved and the law is to be developed from case to case (like in administrative law and law of torts). 90 See, ‘Un it 8: Basic Tools of Data Collection’, infra. 91 For details see, ‘Un it 4: Models of Legal Research and Current Trends in Legal Research’, in fra. chilot.wordpress.com 96 May be due to some of these limitations of socio- legal research, coupled with some other non-conducive situations for non-doctrinal legal research, scholars of law and legal academia, in the past, have not contributed significantly to non-doctrinal legal research. In fact, they have, due to different professional priorities, 92 not ventured into socio- legal research. Future trend seems to be equally bleak. They are not well-trained in the techniques and nuances of socio- legal research. This lack of training has made them to be away from non-doctrinal legal research and developed a somewhat professionally unfavorable climate for socio- legal research. Further, law schools and legal academia lack the aptitude for, and tradition of, sustaining non-doctrinal legal research. However, in the recent past, most of the law schools in Asia and Africa have introduced a course on research methodology at both under- graduate and post- graduate studies of law to induce and train their inmates for undertaking doctrinal as well as non-doctrinal legal research with vigor. Doctrinal legal research, for a variety of reasons, plausibly including the inability and inaptitude of legal scholars to undertake socio- legal research, has been (and is still) prominent in the field of law. Since its evolution, law has been viewed as a science of norms and a ‘closed discipline’. Hence, scholars of law have been endeavoring to look into normative character of ‘law’ and the ‘principles’ involved therein through analysis of ‘statutory’ law. Most of the conventional Law Schools have been (and are) engaged in training their inmates about the techniques of ‘finding law’ and of ‘reading principles’ involved therein. Hence, scholars of law have been engaging themselves in writing classic treatises by carefully looking into ‘law’ and ‘legal principles’ and organizing them in a systematic manner. They have been producing works that are designed for practitioners’-lawyers and judges- reference. One finds classic treatises 93 that have carefully organized and analyzed the doctrinal contents of a field of law in abundance. Another equally significant reason for making doctrinal legal research 92 The key professional priorities of law teachers that have kept them a way fro m socio -lega l research are: obsessive pre-occupation in teaching, preparation of teaching materials and casebooks for monetary and professional gains, and tendering advice to their clients. See, Ernest M Jones, Some Current Trends in Lega l Research, supra n 17. 93 To mention a fe w acc laimed treatises, as illustrations, are: H W R Wade, Administrative Law (Oxford, New Delh i, 9 th edn, 2004), De Smith, Judicial Review of Administrative Action (Stevens & Sons, London, 3 rd edn, 1973), P H Winfield, A Textbook of the Law of Tort (Sweet & Ma xwe ll, London, 1937), [the author himself had five edit ions between 1937 and 1950, for latest edition, see W V H Rogers, Winfield, and Jolowicz on Tort (Sweet and Maxwell, London, 2002), and M P Jain and S N Ja in, Principles of Administrative Law (N M Tripathi, Bo mbay, 1973). chilot.wordpress.com 97 more prominent in the field of law is the historical and traditional influence of analytical positivism on law and lasting influence of overseas (American and British) legal training of academia, lawyers and judges. Analytical positivism has obsessed the thinking of Bar, Bench and academicians to such an extent that no other approach (other than doctrinal one) to the understanding of the nature and purpose of law could really have thrived. This kind of concern tended to identify ‘law’ and ‘a legal order’ only with those elements which are statable in the form of legal propositions. 94 Further, modern legal systems, particularly from common law system, provide ample scope for judicial creativity. As our experience tells, statutory language can never be perfect. Certain ambiguities, gaps and inconsistencies, advertent or inadvertent, are bound to exist in legal phraseology. A word used in a statute, which may appear to be fairly clear at the time of enactment of the statute, may acquire vagueness when the occasion of its application to a case by the court arises. Similarly, the plain statutory language may lose its plainness at the time of actual controversy because of the human limitation to foresee all the difficulties and nuances of the problem. Therefore, Legislature, most of the times, deliberately vests judiciary with certain judicial discretion to meet the ends of ‘justice’. Judiciary, as and when called upon, to interpret statutes has through judicial process evolved certain standards, legal ‘principles’, ‘doctrines’ and ‘concepts’ that attracted attention of scholars of law and of law teachers trained ‘overseas’ to make analysis of these principles, concepts and doctrines. 3.4. I NTER - RELATION BETWEEN D OCTRINAL AND N ON - DOCTRINAL L EGAL R ES EARCH These two broad types of legal research- doctrinal legal research and non-doctrinal legal research- are overlapping rather than mutually exclusive. It is difficult to draw a sharp theoretical or pragmatic line of differentiation between the two. 94 See, Ju lius Stone, Social Dimension of Law and Justice (Stanford University, Stanford, 1966), chap 1. chilot.wordpress.com 98 The distinction between doctrinal and non-doctrinal legal research, if there be one, is one of emphasis. In doctrinal legal research the main objective is to clarify the law, to take a position, to give reasons when the law is in conflict, and, perhaps, to suggest methods for improving the law. It involves the identification of ‘fact’, its underlying policy, and ‘measures’ for improvement. While non-doctrinal legal research gives emphasis on understanding ‘social dimension’ or ‘social facet’ of law and its ‘impact’ on the ‘social attitude’. It gives emphasis on ‘social auditing of law’. In doctrinal legal research legal materials, such as statutes, regulations, and cases, are used, whereas in non-doctrinal legal research, materials from other fields, like sociology, are sought and used. Doctrinal legal research and non-doctrinal legal research, thus, are not mutually exclusive. They compliment each other. Non-doctrinal legal research cannot supplant doctrinal legal research. It can be a valuable supplement or adjunct to doctrinal legal research. It is now accepted that theoretical research without any empirical content is hollow and that empirical work without supporting theory is shallow. ? Activity 3.1: Classify the following published Research products into Doctrinal, Non-Doctrinal, and both types of legal researches, by reading the papers? a. Tilahun Teshome, The Legal Regime Governing Arbitration in Ethiopia: A Synopsis, Ethiopian Bar Review, Vol. 1 No. 2 ,February 2007. _____________________________________________________________________ _____________________________________________________________________ b. Filipos Aynalem, De facto Divorce( dÃó~ /Ç= ó¡„/ õˆ),Mizan Law Review, Vol.2 No. 1,January 2008. _____________________________________________________________________ _____________________________________________________________________ ? Activity 3.2: Compare and Contrast the advantages and Disadvantages of conducting Doctrinal and Non-Doctrinal legal Researches, in the Ethiopian legal system? Which one is more important? _____________________________________________________________________ _____________________________________________________________________ chilot.wordpress.com 99 C HECK YOUR P ROGRESS Define and explain doctrinal legal research. Why is it is known as ‘research in law’? Discuss aims and significance of doctrinal legal research Enumerate and explain different basic tools of doctrinal legal research Assess strengths and weaknesses of doctrinal legal research What is meant by non-doctrinal legal research? How would justify the view that it is ‘research about law’ or ‘socio-legal research’? Identify and explain prominent factors that are responsible for its emergence Discuss basic aims of non-doctrinal legal research Explain basic tools of non-doctrinal legal research Highlight and discuss advantages and limitations of non-doctrinal legal research Do you think that doctrinal legal research and non-doctrinal legal research are distinct and separate from each other in their operation chilot.wordpress.com 100 F URTHER S UGGESTED R EADINGS S N Jain, Legal Research and Methodology, 14 JILI 487 (1972). S N Jain, Doctrinal and Non-doctrinal Legal Research, 17 JILI 516 (1975). Also reprinted in, S K Verma and M Afzal Wani (eds), Legal Research and Methodology (2 nd edn, 2001, Indian Law Institute, New Delhi) 68. Vilhelm Aubert (ed), Sociology of Law (Penguin, 1975). See ‘Introduction’, pp 9-14. Yehezkel Dror, Law and Social Change, 33 Tulane L R 787 (1958-1959) Vilhelm Aubert, Some Social Functions of Legislation, in Vilhelm Aubert (ed), Sociology of Law (Penguin, 1975) 116. Julius Stone, Social Dimensions of Law and Justice (Stanford University, Stanford, 1966) pp 71-85 [See particularly the Project Notes A and B which list English Studies of ‘Law in the Books and ‘Law in Action’, and ‘Conditions of Effectiveness of Legal Rules’.] Julius Stone, Legal Systems and Lawyers’ Reasoning (Stanford University Press, Stanford, 1966). Ernest M Jones, Some Current Trends in Legal Research, 15 Jr of Legal Edu 121 (1962-63). W Friedmann, Law in a Changing Society (Stevens & Sons, London, 2 nd edn, 1972) chilot.wordpress.com 101 UNIT 4 MODELS OF LEGAL RESEARCH AND CURRENT TRENDS IN LEGAL RESEARCH Legal research necessarily overflows into non-legal areas in its search of data, and also in its search of research methods and models that traditionally do not belong to law. S TRUCTURE UNIT 4 MODELS OF LEGAL RESEARCH AND CURRENT TRENDS IN LEGAL RESEARCH 4.1 Models of legal research 4.1.1 Evolutive and evaluative 4.1.2 Identificatory and impact studies 4.1.3 Projective and predictive 4.1.4 Collative 4.1.5 Historical 4.1.6 Comparative 4.2 Current trends in legal research 4.2.1 Mono-disciplinary legal research 4.2.2 Trans-disciplinary legal research 4.2.3 Inter-disciplinary legal research O BJECTIVES chilot.wordpress.com 102 After going through the Unit, you will be able to: Describe different models of legal research Explain objectives and significance of different models of legal research Explain emerging trends in legal research Describe weaknesses and strengths o inter-disciplinary legal research 4.1 M ODELS OF L EGAL R ESEARCH Legal research, like any other research, invariably involves collection and analysis of facts and their interpretation to ascertain or refute existing information or add new information thereto. Inquiry into a legal fact, thus, either supplements the existing theory/information or supplants it with new one. However, a legal researcher, depending upon focal theme and research goals of his inquiry, resorts to research tools and techniques and follows a paradigm that differs from others. A few prominent paradigms or models of legal research, in brief, along with their utility, are outlined here below. 95 4.1.1 Evolutive and evaluative A legal research gets the label of ‘evolutive model of legal research’ when a researcher endeavors to find out how a legal fact, rule, concept, an institution or the legal system itself come to be what it is today. He attempts to trace the origin and development of a legal fact, [such as rule against self- incrimination or double jeopardy], or a legal institution, [like the institution of an ombudsman or a judicial institution, say the Federal Supreme Court of Ethiopia]. Such legal research can also be undertaken even to trace the development of a given law, like the development of constitutional law of a country. The legal researcher can do this by either of the two ways. First, he may prepare a calendar of the successive formal baptismal dates of the legal fact in question. 95 Libera lly re lied upon, Rajku ma ri Agrawa la, Indian Legal Research: An Evolut ionary and Perspective Analysis, in S K Verma & M Afza l Wani (eds), Legal Research and Methodology (ILI, 2 nd edn, 2001) 138. chilot.wordpress.com 103 Secondly, he may trace the evolution of a legal fact or an institution by locating various supportive and causal phenomena, events or factors that were responsible for shaping the growth of a legal fact or an institution under study. Evaluative model of legal research aims at expounding the logical coherence of concepts, elements, facts and interests of legal phenomenon individually, of their relationship inter se and their relationship with the concepts, elements, facts and interests outside the legal system for determining and defining the terms and presuppositions used in law. The research is to ascertain the nature, scope and source of law in order to explain what law is, and also to spell out several propositions used in law. 4.1.2 Identificatory and impact studies Almost every law, other than procedural law, as mentioned earlier, has certain ‘legislative goal(s)’ to attain, and ‘legislative targets’ to handle through ‘law’. A legal researcher, through an identificatory legal research, seeks to ascertain the ‘beneficiaries’ of a particular law or legal provision. His interest is to find out the persons (or group of persons) for whose benefit the identified law (or legal fact) is made to exist. To be more precise, he seeks to answer the question-which are the parties expected or intended to be benefited by a given rule, concept, institution or the system of law. Identification of the parties intended to be benefited by a particular law or legal fact help to ascertain the legislative intent or object of that law or legal fact and to seek and clarify the justification for its existence. It also helps to ascertain the legal framework and strategy employed in it to help the ‘intended’ beneficiaries. It further helps to ascertain whether the intended beneficiaries are actually being benefited or not. In a way, an identificatory legal research serves to assess the utility of the law or a legal fact under inquiry. Such a model of legal research, for example, can be successfully used by undertaking research into the law relating domestic violence, child abuse or harmful traditional practices. Impact of law studies endeavor to assess effectiveness or actual result of an established or a newly conceived law, legal provision, rule or institution. Here legal chilot.wordpress.com 104 researcher gives emphasis not on contents of the substantive law under inquiry but on its ultimate impact on the society or its legislative target. His focus is not merely on the law as is found in the Codes, Statutes, judicial pronouncements and treatises but on its operation or ‘law in action’. He intends to study and understand the effects of the working of law and legal institutions on the life of the individuals and society at a particular time and place. The focus of inquiry, thus, is the ‘law in action’ and on the behavioral and attitudinal changes of the people effected by law. He intends to record and explain how a particular legal fact works within a given social setting. The investigation, incidentally, involves identification of non-legal factors or forces that affect the legal fact(s) in bringing about the intended changes in the society and their interaction with legal facts. The significance of such a legal research can be realized if one recalls that law operates as one of the social sub-systems and it has some social object behind it. As stressed earlier, Lawmakers do not enact law either extempore or by accident. They enact it with deliberation and assign some social role to it. Every law has some purpose behind it. In this sense, law puts other co-existing social sub-systems in motion and thereby the social system itself. However, in this process, law also gets influenced by these co-existing social sub-systems as well as the whole social process and other factors. They affect and influence each other. Such a co nstant interplay ultimately leads to a complex interactive process between law and legal system on one hand and the society and social process on the other. Therefore, the impact of law studies are primarily concerned with assessment of the actual ‘working’ and ‘role’ of a given law or legal provision, or an institution in terms of the satisfaction of its expected or intended object(s). Such an assessment of law helps to monitor the success or failure of a given law or a legal provision or an institution, to identify bottlenecks, if any, and to amend or replace it by other more apt law, a legal provision. It is a preliminary step to law reform. 96 It gives feedback to the policy- makers. 96 See, Ju lius Stone, Social Dimensions of Law and Justice (Stanford University Press, Stanford, 1966) 9 &73. chilot.wordpress.com 105 4.1.3 Projective and predictive A legal researcher generally uses projective model of legal research when he wants to anticipate and highlight effects of a draft legislation or a proposed legal measure. Such a legal research is mainly attitudinal, intended to anticipate the probable response in terms of rejection or acceptance of a proposed measure. Its purpose is to identify the parties who stand for and against the proposed law or legal measure and to locate determinant variables and situations for peoples’ apathy or sympathy. Predictive legal studies are used when a legal researcher intends to anticipate and highlight possible misuse of the proposed law or legal measure. Such a legal research helps the lawmakers to minimize or to do away with the possible undesirable consequences of the proposed measure. Predictive legal studies are generally carried out by Law Commissions, Parliamentary Committees or Joint Select Committees, invariably, before a proposed legal measure takes formal shape and becomes operational. 4.1.4 Collative When a legal researcher prepares a digest of laws, statutory provisions, judicial pronouncements or annotated bibliography 97 on a particular topic or subject, that research gets the label of collative legal research. Here the legal researcher collects all the relevant materials, with or without its summar y, on a given topic and arranges/classifies them in a logical manner. Digests of cases and statutes, like Halsbury’s Statutes of England and Yearly Digests (of cases published by All India Reporter, India), published by well-known law publishers fall in this category of legal research. It would be a mistake to undermine this type of legal research as inferior to other types of legal research. Properly collated legal material, which is reliable, reasonably extensive and classified logically, is as much contribution to legal writing as any other material. A well-collated material will serve a useful purpose by reducing the labor of 97 For e xa mple see, R M W Dias, Bibliography of Jurisprudence (Butterworths, London, 2 nd edn, 1964). chilot.wordpress.com 106 researchers. It offers reliable versions of the law. Collative material has its own value and collative research is an end in itself. 4.1.5 Historical In historical legal research, a legal researcher intends to trace historical antecedents of a legal fact. Tracing history of a particular legal fact becomes significant for its following attributes. First, it becomes useful, rather warranted, when the present statute or statutory provision has raised meaningful queries and it becomes necessary to explore the circumstances in which the present position came out. In such circumstances, it gives a significant clue to the reasons why it (the particular law or legal provision) was framed in the form in which now it appears. It helps to remove certain doubts about the legal fact. Secondly, it supplies the researcher the reasons that justify the present position. It would also exhibit that a par ticular existing provision, fully justifiable at the time when it was introduced, is no longer so justifiable because the reasons and the circumstances that justified its inclusion are no longer valid or exist. Thirdly, it discloses the alternatives, different than the currently adopted ones, which were considered and rejected by the lawmakers and reasons therefor. Such a revelation not only exhibits the sound and valid reasons for rejection of an alternative but also discloses the comparative positive and negative attributes of different alternatives that were thought of (or rejected) and of that are adopted in the legislation under inquiry. In this way, it initiates or contributes in legal reforms. Fourthly, history of a legal fact, when traced deeply and arranged logically, shows the gradual evolution of the law or legal fact on certain lines, and thereby of general trend of its change. It shows the way the legal fact is evolved. 98 Fifthly, historical background of law enables law- makers to know the principles used or followed by Legislature from home or abroad in earlier identical law(s) as very few pieces of legislation are original in the sense of being pure innovations of a skilled draftsman. In majority of the cases, Legislature consults and adapts earlier statutes or makes use of principles laid down or proposed in decided cases. Sixthly, historical background of law or a statutory provision helps judiciary (particularly in Common Law jurisdictions) in interpreting law in a more rational and pragmatic way as historical research helps it to know the 98 See, P M Bakshi, Lega l Research and Law Reform, in S K Ve rma & M Afza l Wani (eds), Legal Research and Methodology, supra n 1, 111. chilot.wordpress.com 107 historical and political spirit in which that particular law (or a legal provision) came into existence and for what reasons. Laws are not made in a vacuum. They are passed in order to meet some needs of socie ty. Seventhly, a law may have relevant international background when it is enacted to give effect to the treaty obligations accepted by the government towards other countries. The practical importance of an understanding and knowledge of that wider politic al context is evidenced by the increasing willingness of the courts to take account of relevant international instruments when construing the legislation. 99 4.1.6 Comparative A comparative legal research carries significance as Legislators, it has been said, imitate each other and try to learn from each other’s experience. Schlesinger has observed: --- [L]egal practitioners and scholars in ever- increasing members have intuitively discovered a simple but significant fact: that when confronted with the same problem, decision- makers ---, though independent of each other and widely separated by time and space, more often than not will respond in a similar way. 100 However, there are two schools of thought about comparative legal research. The first school perceives comparative legal research as a mere process, a method of approaching legal problems. While the second school treats it as a dogmatic science as it aims to study and collate the law of different countries in a systematic order, with the object of placing stress upon the resemblances and differences in the rules adopted by various countries, to solve the many problems coming out of the organized society. The former school has four shades of views. A comparative legal research, according to it, is undertaken (i) to initiate acquaintance with a foreign law, (ii) to animate and modernize the study of private law of a country, (iii) to prepare an internal law by 99 See, E P Ellinger & K J Ke ith, Lega l Research: Techniques and Ideas, 10 Victoria Uni Wellington L Rev 1 (1979-1980) 100 Schlesinger, the Common Core of Legal Systems -an Emerg ing Subject of Co mparative Study, in Tune, Comparative Law, Peace and Justice (1961), cited in W J Wagner, Research in Comparat ive La w: So me Theoretica l Considerations, in Ralph A Newman (ed), Essays in Jurisprudence in Honor of Roscoe Pound (the Boobs-Merrill, Indianapolis, Ne w York, 1962) 511 at 527. chilot.wordpress.com 108 knowing the way in which the legislature from other jurisdictions has carried out reforms, and (iv) to study law ‘common to all’. In spite of the two different schools of thought, it is, however, undeniable that comparative legal research serves as a good means for introducing new ideas into a legal system. The adoption of the Scandinavian institution of the Ombudsman in many Common Law jurisdictions and the adoption in many jurisdictions of consumer protection laws reflecting the American approach are classic examples in point. In most of these instances law reformers, academic lawyers and Law Commissions have conducted comparative study of foreign systems before initiating a new law or proposing amendments in the existing ones. Invariably, every good piece of comparative approach to law not only gives useful ideas to Legislature but also suggests suitable solution to legal problems. However, it may be emphasized that comparative law becomes legitimate only if the comparison is applied to laws of countries whose social conditions are substantially similar. Nevertheless, in connection with the comparative law method, one problem occupied the minds of legal scholars more than any other: that of criteria for profitable comparisons. What should be the subject matter of comparable studies? legal principles and rules can be either similar or dissimilar both in space and time and occasionally they have no counterpart in other legal systems. In the tremendous maze of materials from which the comparative may draw, which should he select for his research? The simple obvious reply is that the answer to the quest ion should depend upon the purpose of the study undertaken. The comparative jurist will mainly refer to such legal systems that are likely to supply him with special stimulation for the problem he examines. 101 Download 1.87 Mb. Do'stlaringiz bilan baham: |
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